One argument that prison officials often raise, either in their motion to dismiss or later on, is that you have no legal basis for continuing your suit because your case has become “moot.” This is only a problem if you are asking for injunctive or declaratory relief. If you are asking for money damages, your case cannot become moot.

A case may be moot if, after you have filed your suit, the prison stops doing what you complained about, releases you on parole, or transfers you to a different prison. The prison officials can ask the court to dismiss your case as moot, saying there is no longer anything the court can order the prison to do that would affect you.

For example, imagine you sue the prison for injunctive relief because they are not providing medical care for your diabetes. In your suit, you ask the court to order the prison to provide you with adequate medical care in the future. Then, after you file your complaint, the prison starts to provide you with medical care. The prison can argue that your case is moot because the only remedy you asked for has already been given to you by the prison.

The good news is that the defendants will have the burden of proving that the case is really moot. This is a heavy burden, since they must show that there is no reasonable expectation that the violations of your rights will happen again. There are five arguments you may be able to make to defeat the prison’s efforts to get your case dismissed because of mootness:

(1) If you have asked for money damages your suit can never be moot. You have a right to get money for injuries you suffered in the past, as long as you sue within the period allowed by the statute of limitations. This does not just apply to physical harm: if you have been denied your constitutional rights, it is an “injury” for which you might be able to get money damages. For more on damages, read Chapter Four, Section C.

(2) A violation of your rights may not be moot if it is “capable of repetition, but evading review.” In other words, the court will allow you to continue your case in a situation where the illegal action will almost always end before the case could get to court. Imagine that a prisoner wants to sue to force the prison to improve conditions in administrative segregation. By the time the prisoner actually gets into court, however, he has been moved back to general population. This case should not be dismissed as moot because it is “capable of repetition,” meaning he could get put in administrative segregation again, and it “evades review” because he might never stay in segregation long enough to get to trial.

To meet this test, the condition must be reasonably likely to recur. Most courts have not applied this exception when a prisoner is transferred to another prison, since it is only “possible” and not “likely” that he will be transferred back. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Transfer may not moot your case however, if the department or officials whom you sued are also in charge of the new prison. Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998).

Sometimes, being transferred away from where the violation happened does not make your suit moot. Courts have found that a state-wide policy that violated your constitutional rights in one facility may still violate your rights in the new facility. See Pugh v. Goord, 571 F.Supp.2d 477 (S.D.N.Y. 2009) and Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002).

(3) If you get a lawyer and file a “class action” suit on behalf of all the prisoners who are in your situation and the class is certified, your suit will not be moot as long as the prison continues to violate the rights of anyone in your class. If you are paroled or transferred, the court can still help the other members of your class. Section F of Chapter Four discusses class action lawsuits. Remember that it is very hard to bring a class action without an attorney.

(4) If any negative entries have been put in your prison records because of your suit or the actions you are suing about, you may be able to avoid mootness by asking the court to order the prison officials to remove (or “expunge”) these entries from your records. The federal courts have held that a case is not moot if it could still cause you some related injury. An entry which could reduce your chances for parole could count as a related injury. Sibron v. New York, 392 U.S. 40, 55 (1968).

(5) You can argue that just because the prison has stopped doing something illegal or has reversed a policy does not mean that the court can’t review the case. You may have a strong argument if you can convince the judge that the prison has just changed course to avoid litigation. You can quote the U.S. Supreme Court that, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). This argument against mootness has been successful in several Section 1983 claims brought by prisoners. One example is Burns v. PA Dep’t of Corrections, 544 F.3d 279 (3d Cir. 2008). The prison officials must show that there is no reasonable expectation that the violations will recur. They must also show that the relief or changes in policy that they put in place have completely fixed the constitutional violation, and the effects it may have had.